Thursday, February 18, 2010

A federal district court has thrown out the case of two men who died in U.S. custody at Guantanamo Bay in 2006 and who are seeking to hold U.S. government officials responsible for the men’s torture, arbitrary detention and ultimate deaths.

The families of the dead men claimed that it was a violation of due process and cruel treatment to detain them for four years without charge while subjecting them to inhumane and degrading conditions of confinement and violent acts of torture and abuse. But, in dismissing the case, the court ruled that the deceased’s claims could not be heard in federal court because the men were held on the basis of an “enemy combatant” finding by a Combatant Status Review Tribunal (CSRT). The CSRTs were later found by the Supreme Court itself to be inadequate.

Following a two-year investigation, the military concluded that the men had committed suicide. But recent first-hand accounts by four soldiers stationed at the base at the time of the deaths have raised serious questions about the cause and circumstances of the deaths, including the possibility that the men died as the result of torture.

The deaths of three men at Guantanamo were the subject of an article in Harper’s Magazine by Scott Horton, an attorney who has written extensively on US detention policy and practice. Horton wrote, “The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report—a reconstruction of the events—was simply unbelievable.”

He went on to explain that, “According to Naval Criminal Investigative Service (NCIS) documents, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.”

The district court held that the families’ claims were excluded by a jurisdiction-stripping provision of the 2006 Military Commissions Act that bars any challenge by a Guantánamo detainee to their treatment, conditions, or any other aspect of their detention, while failing to address the plaintiffs’ arguments about the unconstitutionality of the provision itself.

The court also dismissed the assertions of the dead men under the Alien Tort Claims Act, based on a holding by the D.C. Circuit Court in another detainee case that found that even torture or seriously criminal conduct can fall within the proper “scope of employment” of a government official.

The court also did not consider the plaintiffs’ claims under the Federal Tort Claims Act, including for emotional distress by the families, by holding that the U.S. military base at Guantánamo is still a “foreign country” for the purposes of the Act.

George Brent Mickum IV, a Washington D.C.-based attorney who is currently handling a number of Guantanamo cases, told IPS, “There have been 100 deaths of detainees since 2006. Thirty-six of these have been declared homicides. Only one case has ever been prosecuted. The probable reason: The CIA is responsible for these deaths."

And Pardiss Kebriaei, staff attorney at the Center for Constitutional Rights (CCR), a legal advocacy organization that has provided legal defense for many Guantanamo Bay inmates, said, “These men were tortured and detained for four years on the basis of an arbitrary designation of ‘enemy combatant’ and died in the custody of the United States military. They and their families should have the right to have their claims heard at the very least.”

“The court’s decision is all the more troubling in light of recent information that seriously undermines the official account of how these men died, and creates an even greater urgency for transparency and accountability,” she said.

CCR is considering whether it will appeal the verdict.

In January 2010, Scott Horton reported in Harper’s Magazine the accounts of four soldiers assigned to guard the camp where the deceased were detained at the time of their deaths. He wrote, “The soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, strongly suggest that the deceased were taken to a secret “black site” at Guantánamo on the night of their deaths and died at that site or from events that occurred there.”

Horton said the “undisclosed facility was thought to have been used by the CIA or the Joint Special Operations Command of the Defense Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up initiated by the authorities within hours of the men’s deaths, and say they were ordered by their superiors not to speak out.”

Additional reports by the Seton Hall University School of Law analyzing the military’s investigation files reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.

Seton Hall law professor and Director of the Center for Policy and Research, Mark P. Denbeaux, said, “Amazingly, some of DoD’s statements purporting to defend the NCIS investigation actually impeach it; others are irrelevant or misdirected.”

Denbeaux added, “The inflated number of statements supposedly supporting the NCIS Report are not as important as the statements omitted from the NCIS Report.”

“The Center for Policy and Research Report shows that each of the cell block guards on duty that night gave two statements, and the first statement for each is missing. The only statements from the guards in the NCIS report were made only after those guards had been threatened with prosecution because of the contents of their previous—and now missing—statements,” he said.

Professor Denbeaux continued, “Not only are the Alpha Block Guards first statements missing, but the Center for Policy & Research discovered that all of the contemporaneous statements from every person on duty that night are missing. Everyone on duty that night, in addition the Alpha Block guards, was ordered to write sworn statements as soon as the detainees were declared dead. And every one of those statements is missing.”

CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, two men who were reportedly found dead along with a third detainee, Mani Al-Utaybi of Saudi Arabia, in their cells at Guantanamo on June 10, 2006.

At the time of their deaths, Al-Zahrani and Al-Salami had been detained incommunicado for more than four years without charge. In letters found following their deaths, the men described their conditions and abuse, including being beaten by teams of military police known as the “Extreme Reaction Force,” deprived of sleep for up to 30 days at a time, subjected to desecration of the Qur’an and forced shaving, and denied necessary medical care.

Next week the Supreme Court will consider one of the most consequential cases to arise from the “global war on terrorism.”

The nine justices will hear lawyers’ arguments in a case known as Holder v. Humanitarian Law Project, which challenges a portion of the USA Patriot Act. That act was hastily passed by Congress soon after the terrorist attacks of 9/11, with only one dissenting vote.

The Supreme Court case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.” It will test whether a person in the U.S. may be held criminally liable for speech advocating lawful, nonviolent activity that supports an organization on the government’s terrorist list. The hearing is scheduled for Tuesday (March 23).

The plaintiffs, represented by the Center for Constitutional Rights (CCR), a legal advocacy group, charges that the law goes too far in criminalizing speech, including prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” The law currently deems it a crime speak within these issues, even if the speech is totally peaceful and nonviolent.

Lower courts have ruled several provisions of the statute “unconstitutionally vague” because they involve free speech and leave citizens to speculate about their meaning.

David Cole, a professor at the Georgetown University Law Center, who is a CCR Cooperating Attorney on this case, says, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”

The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision, of which the administration is seeking review, is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.

The material-support ban, which imposes heavy criminal penalties on those who violate it, has been used by the government in dozens of cases. More than 150 defendants have been charged under the statute since 2001.There have been approximately 75 convictions.

Before the high court, Cole will be representing the Humanitarian Law Project (HLP) and other groups. HLP has been helping the Kurdistan Workers Party by training it in how to bring human rights complaints to the United Nations and advocating on behalf of Turkish Kurds. But it had to end its work in 1997 when the secretary of state designated the party a terrorist organization.

"The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities," Cole said. "Our First Amendment complaint is that the material support provisions penalize speech and association."

The U.S. Government’s Solicitor General, Elena Kagan, will oppose Cole in oral arguments. The government’s position is that the statute's requirement that someone "knowingly" provide material support to a designated terrorist organization "diminishes any vagueness concerns." The challenged terms, such as "training," her brief says, "rest on simple distinctions that are readily understood by persons of ordinary intelligence."

The 9th U.S. Circuit Court of Appeals held in 2007 that the prohibitions were unconstitutionally vague as applied to Cole's clients. It rejected their claims that the law imposed guilt by association in violation of the First and Fifth amendments. Both Cole and the government filed petitions for review with the Supreme Court.

Attorney Cole, a widely respected Constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies. He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”

“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he said, adding:

“With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”

“Our clients sought only to support lawful and nonviolent activity, yet the Patriot Act provision draws no distinction whatsoever between expert advice in human rights, designed to deter violence, and expert advice on how to build a bomb. We think the Constitution demands that the law recognize the difference between furthering human rights and furthering violence,” he said.

The lead plaintiff in the case is Ralph Fertig, a 79-year-old pacifist and civil rights lawyer from Los Angeles. He says he wants only the freedom to advocate for the rights of the Kurdish minority in Turkey. He is troubled that Kurds can be punished for speaking their own language or displaying their national colors. And he believes the 1st Amendment protects his right to counsel Kurdish leaders to steer away from violence and to take their cause to the United Nations.

Over the years, Fertig and the Humanitarian Law Project have won a series of rulings that have shielded its members from prosecution. Last year, the U.S. 9th Circuit Court of Appeals declared parts of the anti-terrorism law vague and unconstitutional. However, the Obama administration appealed to the Supreme Court, arguing that these rulings undercut "a vital part of the nation's effort to fight international terrorism."

In 1996, Congress expanded the anti-terrorism law, imposing a prison term of up to 15years for providing "training" or "expert advice or assistance" to a designated international terrorist group. The ban on supporting terrorists forbids sending not only money, weapons and fighters, but also charitable funds. Government lawyers say it even forbids filing a legal brief or writing an op-ed essay on behalf of a designated terrorist group.

About Me

William Fisher has managed economic development programs for the US State Department and the US Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years. He served in the administration of President John F. Kennedy.